Here’s a link to a piece by McClatchy’s Michael Doyle and Marisa Taylor on the response by various members of Congress to Lieutenant General Franklin’s disapproval of the convictions in Lieutenant Colonel Wilkerson’s case. Tha article indicates that on Wednesday, “Rep. Jackie Speier, D-Calif.” will introduce legislation “which would strip away a commander’s ability to dismiss convictions.”

16 Responses to “McClatchy on the congressional response to the disapproval of LTC Wilkerson’s conviction”

Cave added that lawmakers’ “specific interference” in the Wilkerson case amounted to an abuse of their authority and might amount to unlawful command influence.
I don’t suppose there’s really such a thing as “unlawful congressional influence” – but if Congress starts declaring individuals to be guilty (or even entire classes of people, e.g., all persons who supported the Confederate States, or all persons accsed of rape), and using its Congressional powers to mandate the results it wants, mightn’t that be a Bill of Attainder?

Instead of taking the CA’s power to disapprove findings away, I would be good with requiring the CA to explain his decision in writing, and identify whether the action is based on clemency or to remedy legal error.
If they insist on taking away the CA’s power post-trial, then in the interests of fairness, I think CAs should be required to not refer cases that the Article 32 IOs think are crap–more like the civilian procedure where a case can be killed at the preliminary hearing. With all the talk about making the MJ system more like the civilian system, and the power to refer a case to court against a recommendation not to is a huge difference, AND that can’t be laid at the feet of the CA.

Also wondering what, if any, impact this latest broohah will have on the BG Sinclair case….

“When those with the mantle of command authority deliberately orchestrate pretrial publicity with the intent to influence the results in a particular case or series of cases, the pretrial publicity itself may constitute unlawful command influence. Even the perception that pretrial publicity has been engineered to achieve a prohibited end—regardless of the intent of those generating the media attention—may lead to the appearance of unlawful command influence.”

United States v. SSG Delmar G. Simpson, 58 M.J. 368, 374 (CAAF 2003).

Let’s see:
1. Mantle of authority–Congress creates our rules and is now threatening to change the rules to prevent further favorable outcomes for an accused
2. Deliberately orchestrate pretrial publicity–how many of these Congress women have publicly voiced their outrage, how many media reports about this are out there, and comments from the public showing outrage over the Wilkerson case?
3. Intent to influence the result in a particular case or series of cases–our rulemakers calling for zero tolerance of sexual assault, calling for the firing of the CA for siding with the accused, proposing legislation to prevent other CAs from being able to do this, every other CA has to be looking at the Wilkerson case and thinking they don’t want Congress lasering in on them, they don’t want to be in Lt.Gen. Franklin’s shoes, so they better not do anything to favor those accused of sexual assault.

“Mantle of authority” <> “Mantle of command authority,” though. Congress is scary to the military to be sure, given the control it has over funding and military law, but it isn’t in the chain of command. Of course if you could prove that a commander, frightened/intimidated by the senators, himself committed UCI, that would be a different story; but the senators themselves are not in anybody’s chain of command.
I can’t use my gov’t-provided research account to delve into this, but to directly attack the senators’ actions as affecting court-martial, I think you’d have to go for a due process/bill of attainder type argument, something that really does pertain to Congress, rather than UCI.

It will be fascinating to watch future Senate confirmation hearings. No doubt staffers will research what cases the nominated officers did/did not refer on the front end or affirm on the back end as commanders. That research will bloom into uncomfortable questioning and translate into confirmation votes. It will be the new skeleton in the closet and that likely exerts some influence on future commanders’ justice decisions. Perhaps it already has a name — politics.

Tami, I agree that the CA should explain their rationale. The fact that it looks like a “black box” without any explanation only fuels speculation about improper motives. I disagree with your solution if they take away CA’s post-trial review, though. There is no way a random Major Article 32 officer should have any power to end a case. Many are completely incompetent to make that decision, and it’s not unusual for administrative law attorneys with little or no MJ experience to advise them. I think a fairer solution would be allowing Military Judges to issue directed verdicts.

Judges currently have the power to issue what are effectively “directed verdicts,” after the entry of findings It is a very high standard. United States v. Griffiths. I don’t think and have never tried to extend Griffiths to the sentence.

Stewie,
If an IO recommends going forward, then in my view, the CA can go forward.

John S,
The “incompetent” MAJ who sits as an Article 32 officer is the same MAJ who sits on another accused’s court-martial panel, making the same kind of decision. The administrative law attorney with little to no MJ experience has a Chief of Administrative Law who does have experience.

If Congress is going to change our system on the back end to take away power to benefit an accused, then in all fairness, Congress should change our system on the front end by giving an independent officer the power to benefit an accused with a recommendation to not court-martial that person for lack of sufficient evidence. In my experience, the Article 32 officers who recommend not going forward do so because they have genuine doubts about the sufficiency of the evidence, and it’s not going to get better for the government at trial. And in the cases of insufficient evidence, they shouldn’t go to trial in the first place.

yes but you just said you would take away the power of the CG to decide on going forward in spite of an IO recommending to not go forward, so either the IO makes the final call or he/she doesn’t. That would mean that the CG would be powerless to stop a case going forward, even if desired because a Major decided to go forward, even if a bad idea, yes? I guess I don’t get the skepticism of the CA tied with the faith in an O4.

One “incompetent Major” on a panel has at least a few other folks, usually several senior, and has been hand-picked for Article 25 criteria at least in theory. The Major picked for an Article 32 has often been hand-picked by a duty roster and is the sole person making the call. Bit of a difference.

Heck if we really wanted to give power to the folks most qualified to make these calls, we’d give the power to JAGs.

I said if the IO recommended the case go forward, the CA “can” go forward, I didn’t say “must.” Whatever benefits the accused the most, that’s what the referral should be limited to. Personally, I think it would be great to have JAGs as IOs for Article 32s. That has been the practice in some jurisdictions and in high-profile cases–maybe that should be the requirement.

In my personal experience, I’ve had only a few cases where I felt the IO was simply rubber-stamping the government’s case, but then maybe my experience is the exception to the general rule?

I gathered you thought the standard should be whatever benefits the accused the most, but that’s not really a neutral/unbiased position.

It would seem to me that the proper goal is to find the most accurate way to measure/weigh whether a case objectively should go to trial or not, not what benefits the accused (or the government). The reality is the right to a fair trial is what is most paramount, not necessarily the most accused-friendly arraignment process.

Even so, whomever has the power, the article 32 process is still light years more accused-friendly than a civilian probable cause hearing or even a grand jury indictment. I’ve seen IOs who were rubberstamps and sent cases that I wouldn’t have, and I’ve seen IOs who were idiots who didn’t send forward a case that should go forward, and I’ve seen highly competent IOs who got it exactly right.

Like anything, a mixed bag. But the reality is in the entirety of our legal system, military or civilian, the standard for going to trial is universally a low one, probable cause/reasonable grounds.

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